Supreme Court to hear challenge to military tribunals
Supreme Court to Hear Tribunals Challenge
Nov 07 10:20 AM US/Eastern
By GINA HOLLAND
Associated Press Writer
The Supreme Court agreed Monday to consider a
challenge to the Bush administration's military
tribunals for foreign terror suspects, a major test of
the government's wartime powers and a case presenting
the first conflict for new Chief Justice John Roberts.
Justices will decide whether Osama bin Laden's driver
can be tried for war crimes before military officers
in Guantanamo Bay, Cuba.
Roberts, as an appeals court judge, joined a summer
ruling against Salim Ahmed Hamdan.
He did not participate in Monday's action, which put
him in the difficult situation of sitting in judgment
of one of his own rulings. Lawyers for Hamdan were
expected to ask Roberts to participate in the case, to
avoid a 4-4 tie.
The court's intervention was a surprise. In 2004
justices took the first round of cases stemming from
the government's war on terrorism. Justice Sandra Day
O'Connor, who is retiring, wrote in one case that "a
state of war is not a blank check for the president
when it comes to the rights of the nation's citizens."
The announcement of the court's move came shortly
after President Bush, asked about reports of secret
U.S. prisons in Eastern Europe for terrorism suspects,
declared anew that his administration does not torture
"There's an enemy that lurks and plots and plans and
wants to hurt America again," Bush said during a joint
news conference in Panama City with President Martin
Torrijos. "So you bet we will aggressively pursue them
but we will do so under the law."
Hamdan's case brought a new issue to the court _ the
rights of foreigners who have been charged and face a
military trial in a type of proceeding resurrected
from World War II. Trials of Hamdan and three other
low-level suspects were interrupted last fall when a
judge in Washington said the proper process had not
The men are among about 500 foreigners, many swept up
in the U.S.-led war in Afghanistan, who have been held
at the U.S. military prison in Cuba. The government
had planned to proceed with a military trial for
another foreigner, Australian David M. Hicks, with a
pretrial hearing later this month, but that will
likely be stalled now.
Guantanamo Bay has become a flash point for criticism
of America overseas and by civil libertarians.
Initially, the Bush administration refused to let the
men see attorneys or challenge their imprisonment. The
high court in 2004 said U.S. courts were open to
filings from the men, who had been designated enemy
Retired military leaders, foreign legislators,
historians and other groups had pressed the Supreme
Court to review the case of Hamdan, who like many
Guantanamo inmates began a hunger strike over the
A three-judge panel of the United States Court of
Appeals for the District of Columbia Circuit,
including Roberts, ruled against Hamdan, finding that
the 1949 Geneva Convention governing prisoners of war
does not apply to al-Qaida and its members.
The ruling was handed down shortly before Roberts was
named to the Supreme Court. Ethics experts have
disagreed over whether Roberts should have recused
himself from that case, because he was being
interviewed for the O'Connor seat while the matter was
The administration argued that it was unnecessary for
the court to get involved because the Pentagon had
relaxed the rules for tribunals, enabling classified
information to be shared with defendants "to the
extent consistent with national security, law
enforcement interests and applicable law." The
government also changed the structure of the panels
that will hear the cases and decide the men's
punishment, with death sentences possible.
Hamdan's lawyer, Georgetown University professor Neal
Katyal, said in a filing that "it is a contrived
system subject to change at the whim of the
"With constantly shifting terms and conditions, the
commissions resemble an automobile dealership instead
of a legal tribunal dispensing American justice and
protecting human dignity," he wrote.
Hamdan, who was captured in Afghanistan in November
2001, denies conspiring to engage in acts of terrorism
and denies he was a member of al-Qaida. He has been
charged with conspiracy to commit war crimes, murder
Trial proceedings for Hamdan and three other men were
begun last summer but the process was halted after a
district court ruled that Hamdan could not be tried by
a military commission unless a "competent tribunal"
determined first that he was not a prisoner of war.
Besides Hamdan, the others who have been charged are
an al-Qaida accountant, a propagandist and a Taliban
The case is Hamdan v. Rumsfeld, 05-184.
On the Net:
Supreme Court: http://www.supremecourtus.gov/